Introduction

Raza v Secretary of State for the Home Department ([2023] EWCA Civ 29) is a landmark appellate decision by the England and Wales Court of Appeal (Civil Division) that addresses two pivotal issues in the realm of immigration law: the legality of conducting tribunal hearings via video link from abroad without explicit permission from the foreign state, and the application of the 'unduly harsh' test under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") in deportation cases involving foreign nationals convicted of crimes.

The appellant, referred to as 'A', contested determinations by the Upper Tribunal (Immigration and Asylum) Chamber which had dismissed his appeals against decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) ('FtT'). Central to the case were A's claims that his tribunal hearing conducted via video link from Pakistan was unlawful and that the tribunal erred in applying the 'unduly harsh' test, leading to his deportation.

Summary of the Judgment

The Court of Appeal, presided over by Elisabeth Laing LJ with agreement from Lord Justice Lewis and Lord Justice Arnold, upheld the decisions of both the FtT and the Upper Tribunal (UT). The primary determinations were:

• The FtT's decision to conduct the hearing via video link from Pakistan was lawful, as there was no domestic legal provision rendering it a nullity.
• The application of the 'unduly harsh' test under section 117C(5) of the 2002 Act was correctly understood and applied by the FtT, aligning with established precedents.

Consequently, A's appeals were dismissed, affirming the tribunal's procedures and legal standards in immigration deportation cases.

Analysis

Precedents Cited

The Judgment extensively referenced several key precedents that shaped the tribunal's and the Court's reasoning:

• AJ (s.94B; Kiarie and Byndloss questions) Nigeria [2018] UKUT 115: Guided the tribunal in determining the feasibility and fairness of conducting hearings via video link from abroad.
• KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53: Addressed the application of the 'unduly harsh' test, rejecting the notional comparator approach and emphasizing an elevated threshold for harshness.
• MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223: Confirmed as the correct test for assessing whether deportation conditions are unduly harsh, focusing on the severity and bleakness of the consequences.
• HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22: Reinforced the standards for the 'unduly harsh' test, aligning with MK (Sierra Leone) and KO (Nigeria).
• NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239: Established that the best interests of children are a primary but not paramount consideration in deportation cases.
• Imran (Section 117C(5); children, unduly harsh) [2020] UKUT 83: Provided further clarification on the application of the 'unduly harsh' test concerning children.

These precedents collectively underscored the necessity for tribunals to apply a nuanced and elevated threshold when determining the harshness of deportation consequences, especially concerning family members.

Legal Reasoning

The Court's legal reasoning delved into both the procedural legality of remote hearings and the substantive evaluation of deportation harshness:

• Legality of Video Link Hearings: The 2002 Act mandates certain appeals to be conducted from abroad, with no stipulation requiring explicit permission from the foreign state for video link evidence. The tribunal's reliance on procedural norms, supported by evidence that Pakistani authorities did not object, was deemed lawful. The Court differentiated between legal nullity and potential diplomatic tensions, affirming that any diplomatic repercussions fall outside the judicial purview.
• 'Unduly Harsh' Test Application: The tribunal's adherence to the MK (Sierra Leone) and KO (Nigeria) formulations for assessing 'unduly harsh' consequences was validated. The Court emphasized that 'unduly harsh' signifies something beyond merely harsh or inconvenient, requiring severe or bleak outcomes. The FtT's assessment that the separation's impact, while emotionally distressing, did not meet this elevated threshold was upheld.

Additionally, the Court addressed the credibility of evidence presented, particularly concerning the appellant's wife's mental health and support systems, affirming the tribunal's discretion in evaluating testimonial reliability.

Impact

This judgment has significant implications for future immigration and deportation cases:

• Procedural Legality of Remote Hearings: Confirms that video link hearings from abroad are permissible under current legislation without explicit foreign state consent, provided there is no legal prohibition. This establishes procedural confidence in the use of technology for tribunal proceedings, especially pertinent in globalized and remote contexts.
• Application of the 'Unduly Harsh' Test: Reinforces the stringent criteria for deeming deportation consequences as 'unduly harsh', ensuring that only in cases of severe and bleak outcomes is deportation withheld. This protects individuals from deportation in scenarios where familial and emotional hardships do not reach the high threshold required.
• Evaluation of Evidence Credibility: Empowers tribunals with the authority to critically assess the reliability and consistency of evidence, particularly in remote hearings, ensuring that decisions are based on credible and corroborated information.

Overall, the judgment upholds the balance between efficient tribunal procedures and the protection of individuals' rights under immigration law.

Complex Concepts Simplified

Video Link Hearings from Abroad

Video Link Hearings: These are court or tribunal hearings where participants join remotely via video conferencing tools, rather than being physically present in the courtroom.

Nullity: A legal term meaning that a process or procedure has no legal effect from the outset. If a hearing is a nullity, it is as if it never happened.

'Unduly Harsh' Test

This is a legal standard used to determine whether the consequences of deporting an individual are excessively severe or distressing. It requires that the hardship caused by deportation goes beyond what is considered acceptable or justifiable.

Section 117C(5) of the Nationality, Immigration and Asylum Act 2002

This section outlines the conditions under which deportation of a person convicted of an offense would be considered unduly harsh, taking into account the impact on family members and other personal circumstances.

Conclusion

The Raza v Secretary of State for the Home Department decision serves as a pivotal affirmation of both procedural and substantive aspects of immigration law in the United Kingdom. By upholding the legality of video link hearings conducted from abroad without explicit foreign consent, the judgment reinforces the adaptability and procedural integrity of tribunals in a digital age. Moreover, the steadfast application of the 'unduly harsh' test ensures that deportation decisions are meticulously scrutinized to prevent disproportionate hardship, particularly in familial contexts.

This case underscores the judiciary's role in balancing efficient legal processes with the protection of individual rights, setting a clear precedent for future immigration and deportation cases. Legal practitioners must heed the clarified standards and procedural allowances affirmed in this judgment to navigate the complexities of immigration appeals effectively.